White v. Ewald

Filing 9

MEMORANDUM & ORDER denying as moot 5 Motion to Appoint Counsel; granting 2 Motion for Leave to Proceed in forma pauperis; Petitioner's application to proceed in forma pauperis is GRANTED, however his Petition is DISMISSED. Accordingly, Pe titioner's application for the appointment of pro bono counsel is DENIED as moot. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to Plaintiff. So Ordered by Judge Joanna Seybert on 10/9/2014. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
PAUL WHITE,
Petitioner,
-against-

MEMORANDUM & ORDER
14-CV-4915(JS)

CHARLES EWALD, Warden of the
Suffolk County Correctional
Facility,
Respondent.
----------------------------------X
APPEARANCES
For Plaintiff:
Paul White, pro se
158736
Suffolk County Correctional Facility
110 Center Drive
Riverhead, NY 11901
For Defendant:

No appearance

SEYBERT, District Judge:
On August 13, 2014, incarcerated pro se petitioner Paul
White (“Petitioner”) filed a Petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 together with an application to
proceed in forma pauperis. On August 20, 2014, Petitioner filed an
application for the appointment of pro bono counsel to represent
him in the instant Petition.1

For the reasons that follow,

Petitioner’s application to proceed in forma pauperis is GRANTED,
Although Petitioner filed this Petition pro se, the Court notes
that he claims to have “attended law school in Washington D.C. as
well as pass[ed] the Federal Bar Exam to practice before the U.S.
Patent and Trademark Office.” (Pet., Docket Entry 1, at 15.)
Accordingly, Petitioner is not entitled to the special solicitude
normally afforded to pro se litigants. Maloney v. Cuomo, 470 F.
Supp. 2d 205, 209 (E.D.N.Y. 2007), aff’d, 554 F.3d 56 (2d Cir.
2009), vacated on other grounds, 130 S. Ct. 3541, 177 L. Ed. 2d
1119 (2010).

1

the Petition is DISMISSED, and the application for the appointment
of pro bono counsel is DENIED as moot.
BACKGROUND
Petitioner, a pre-trial detainee at the Suffolk County
Correctional Facility, challenges the Constitutionality of his
detention, claiming that he has been denied access to the courts.
See Pet. ¶¶ 4, 7, 14 and see generally Pet. at 10-75.

More

specifically, Petitioner claims that, following his October 4, 2013
arrest under Suffolk County indictment numbers 2710-2012 and 912A2013 for grand larceny, fraud, accessory to mortgage fraud and
falsifying business records, he has submitted “over two hundred
(200) ‘request chits” to have extra time in [the] law library to
prepare for his defense and criminal trials.”

(Pet. at 16.)

Plaintiff claims that he has filed “grievances” with the Suffolk
County Correctional Facility, the Commission of Corrections, and
the Supreme Court, Suffolk County, and that his grievances were
denied on July 14, 2014.

(Pet. ¶ 7.)
DISCUSSION

Pursuant to 28 U.S.C. § 2241, federal prisoners who are
“in custody in violation of the Constitution, or laws or treaties
of the United States,” may file a petition for a writ of habeas
corpus. 28 U.S.C. § 2241(c)(3). Section 2241 is also available to
state pre-trial detainees who seek to challenge their custody as
being in violation of the Constitution or federal law.
2

Hoffler v.

Bezio, 831 F. Supp. 2d 570, 575 (N.D.N.Y. 2011) (citing United
States ex rel. Scranton v. State of New York, 532 F.2d 292, 293 (2d
Cir. 1976)).

However, “[a]though not a statutory requirement,

Section 2241 has been interpreted as requiring a petitioner to
exhaust available state court or administrative remedies prior to
seeking any relief thereunder in federal court.”

Robinson v.

Sposato, 11-CV-0191, 2012 WL 1965631, at *2 (E.D.N.Y. 2012) (citing
Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632-34 (2d Cir.
2001)); Scranton, 532 F.2d at 294 (“ . . . decisional law has
superimposed

such

[an

exhaustion]

requirement

in

order

to

accommodate principles of federalism.”).
A petitioner exhausts available state remedies when he
has “presented the federal constitutional claim asserted in the
petition to the highest state court . . . and informed that court
(and lower courts) about both the factual and legal bases for the
federal claim.” Ramirez v. Attorney Gen. of New York, 280 F.3d 87,
94 (2d Cir. 2001).

Thus, “[a] petitioner who has not exhausted

available state court or administrative remedies may only seek a
writ of habeas corpus under Section 2241 if: (1) he establishes
cause for his failure to exhaust and prejudice as a result of the
alleged violation of federal law, or (2) he demonstrates that the
failure to consider his claims will result in a fundamental
miscarriage of justice.”

Robinson, 2012 WL 1965631, at *2 (citing

Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2564-65,
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115 L. Ed. 2d 640 (1991)) (additional citation omitted).
Here, Petitioner claims only to have filed “grievances”
with the Suffolk County Correctional Facility, the Commission of
Corrections, and the Supreme Court, Suffolk County and that his
grievances were denied on July 14, 2014.

Petitioner does not

assert that he has presented any of the claims raised in the
Petition to the highest state court. Nor has he asserted any cause
for his failure to exhaust his state court remedies, any prejudice
resulting to him from the alleged violation of his Constitutional
rights, or that the failure of this Court to consider his claims
will result in a fundamental miscarriage of justice.

As such, his

Petition must be DISMISSED.
Even if Petitioner had exhausted his Constitutional
claims

in

dismissed.

state

court,

the

instant

Petition

would

still

be

Because there is a criminal proceeding pending against

Petitioner in state court, which will present ample opportunity for
review of his Constitutional claims, habeas relief is unavailable
at this time.

Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191,

198 (2d Cir. 2002) (“Younger generally requires federal courts to
abstain from taking jurisdiction over federal constitutional claims
that involve or call into question ongoing state proceedings.”)
(citing Younger v. Harris, 401 U.S. 37, 43-44, 91 S. Ct. 746, 760,
27 L. Ed. 2d 669 (1971)).

Indeed, the habeas corpus statute,

cannot be used to “permit the derailment of a pending state
4

proceeding

by

an

attempt

to

litigate

prematurely in federal court.”

constitutional

defenses

Braden v. 30th Judicial Circuit

Court, 410 U.S. 484, 493, 93 S. Ct. 1123, 1129, 35 L. Ed. 2d 443
(1973); see also York v. Ward, 538 F. Supp. 315, 316 (E.D.N.Y.
1982) (federal habeas corpus is not to be converted “into a
pretrial motion forum for state prisoners.”) (internal quotation
marks and citation omitted).

Petitioner has not alleged any

circumstances that would militate against abstention in this case.
As such, the Petition must be DISMISSED.

Given the dismissal of

the Petition, Petitioner’s motion for appointment of pro bono
counsel is DENIED as moot.
CONCLUSION
Petitioner’s application to proceed in forma pauperis is
GRANTED,

however

his

Petition

is

DISMISSED.

Accordingly,

Petitioner’s application for the appointment of pro bono counsel is
DENIED

as

moot.

The

Court

certifies

pursuant

to

28

U.S.C.

§ 1915(a)(3) that any appeal would not be taken in good faith and
therefore in forma pauperis status is denied for purpose of an
appeal.

Coppedge v. United States, 269 U.S. 438, 444-45 (1962).
The Clerk of the Court is directed to mail a copy of this

Memorandum and Order to Plaintiff.
SO ORDERED.

Dated: October
9 , 2014
Central Islip, New York

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
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